Heard at Field House 					         [2003] UKIAT 00134 S (Bhutan)
On  	 13 October 2003
Written 13 October 2003					   

IMMIGRATION APPEAL TRIBUNAL
	
Date Determination Notified

							           11.11.03 	

Before

Mr S L Batiste (Chairman)
Mrs M L Roe

Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

DETERMINATION  AND REASONS
 					  	
1.	The Appellant, a citizen of Bhutan, appeals, with leave, against the determination of an Adjudicator, Mr A J Olsen, dismissing his appeal against the decision of the Respondent on 19 August 2002 to issue removal directions and refuse asylum 

2.	Mr G Davison represented the Appellant. Ms T Hart, a Home Office Presenting Officer, represented the Respondent. 

3.	The Appellant claims that both he and his parents were born in Bhutan, but his paternal grandfather came from Nepal, and the family is therefore of Nepalese ethnicity. In 1994, his father was killed by the army because he belonged to the Bhutan People’s Party. His mother told him that the government had expelled a number of ethnic Nepalese who were called traitors and told they have no right to live in the country. Later that year, when he was nine years old, he and his mother moved to India where they stayed illegally in hiding.  His mother obtained work in the hotel where they remained until she died in May 2000.  After she died the Appellant was forced to take over her job in the hotel kitchen but he found the duties very hard and the hours very long.  As a result his health suffered and when he told the manager he was told that he would arrange for the Appellant to leave India.  He was put in contact with an agent who arranged for him to travel to the UK via Russia.  He entered illegally and claimed asylum the next day.

4.	The Respondent in rejecting the claim challenged the Appellant’s assertion that he was 17 and a minor at the time of his arrival here, and also that he was Bhutanese at all. 

5.	The Adjudicator held that the Appellant was born in 1985 as claimed and is a Bhutanese national, of Nepalese ethnicity. It was unclear how many generations back this extended, though it certainly included his parents who were born in Bhutan. The Adjudicator accepted that the Appellant left Bhutan when he was nine years old and went to India with his mother. He accepted that the Appellant's father no longer featured in his family after 1994, but concluded that the account of his death came from a rather unclear account from his mother that confirmed only that his father was taken away and she never saw him again.  The Adjudicator also accepted the claimant's account of his stay in India. However he did not believe his account of how he came to the UK.  This limited adverse credibility finding was based upon the lack of evidence of who paid for the Appellant’s journey here, and the implausibility that he would meet a Nepali speaking person whilst he was walking the streets in Edgware.

6.	On this basis the Adjudicator concluded that the Appellant was not stateless, as was submitted on his behalf.  He was not satisfied on the evidence that the Appellant would be debarred automatically from returning to Bhutan. 35% of the Bhutan population were of Nepalese ethnicity. He noted and accepted a report from Amnesty International which stated that 
Nepali speaking people from Bhutan who have been forced to leave the country, and those who have left voluntarily, have a right to return to return unless it is established in an individual case that a person has another country of nationality. The exceptions for those to whom Bhutan is their country, might be ethnic Nepali people who have recently migrated to Bhutan from India or Nepal.

7.	The removal directions in this appeal were to Bhutan. If proper travel documents could not be obtained, then the removal directions would be unenforceable. The Adjudicator held it was not for him to speculate on the outcome of the enquiries that would be made to obtain these travel documents. As the only fear expressed by the Appellant to the Adjudicator was whether he would be accepted in Bhutan, the Adjudicator concluded there was insufficient evidence to establish that he would not.

8.	There are three separate grounds of appeal. In making our assessment of them, we have born in mind the guidance of the Court of Appeal in Oleed to the effect that we should not interfere with a determination by an Adjudicator unless it is plainly wrong or unsustainable.

9.	The first ground of appeal is that the Adjudicator was in error in failing to accept the Respondent's representative's concession on credibility at the hearing.. There is a witness statement from the Appellant's representative at the hearing, Ms V Loughton. She quotes from her notes, which state “Accepts Nepalese - no dispute on credibility - Home Office will not dispute credibility.”  However, as the Tribunal has frequently said, there is a material distinction between a formal concession as to credibility and the decision by the Respondent's representative at the hearing not challenge or dispute it. A formal concession would be binding on the Adjudicator but otherwise he would be free to reach his own conclusions on the evidence before him.  The quotation from Ms Loughton’s notes does not in our view establish a formal concession.  Accordingly the Adjudicator was free to reach his own conclusions.  Having said that, as Mr Davison acknowledged, the limited adverse credibility findings have not had any material impact on the outcome of the determination.

10.	The second ground is that the Adjudicator failed properly to determine the issue of statelessness. As we have indicated above, the Adjudicator found that the Appellant was a citizen of Bhutan and was not stateless. It is true, as stated in the grounds of appeal that part of his reasoning was that the Appellant had himself stated that he was Bhutanese and the Appellant is not an expert on the law of nationality. However the Adjudicator also had viable objective evidence before him on this point. He was entitled to give weight to the Amnesty International, quoted above. Also the CIPU report before him stated that 
“There is no indication in any sources found that returnees from countries other than Nepal and India are automatically regarded  as F2 (returned migrants who have invalidated their Bhutanese nationality by having left Bhutan and then re-entered) and unilaterally stateless or are debarred automatically from being returned to the country.”

11.	The grounds of appeal argue that the objective evidence as a whole suggests that the Bhutanese government is unlikely to recognise him as a citizen. But “unlikely” does not equate with statelessness.  It is true that in 1977 and 1985 the Bhutan government enacted legislation that affected many Nepali Bhutanese. The Marriage Act of 1977 redefined a citizen as one having a Bhutanese father. Previously either parent was sufficient. The Citizenship Act of 1985 required proof of citizenship that depended on long residence in Bhutan. It deprived many Lhotsampas (Bhutanese Hindus of Nepalese origin, who lived in the southern plains of Bhutan) of citizenship, on the basis that they were illegal immigrants. However, as the Adjudicator held, it is by no means established that the Appellant would fall foul of these Acts.  He and both his parents were born in Bhutan, and the issue in doubt is whether it was his grandparents or his great-grandparents who came to Bhutan.  There is indeed a live issue about whether the substantial number of Nepalese refugees from Bhutan living currently in Nepal and India will be re-admitted. There are protracted negotiations between the governments of Nepal and Bhutan about this that have effectively stalled without a solution. However the Appellant would be returning from the United Kingdom, not Nepal or India, even though he came here from India. 

12.	The Adjudicator clearly addressed the issue of nationality/statelessness and was entitled to conclude on the evidence that there was no automatic removal of citizenship in the Appellant’s case. The Appellant remained a Bhutanese national and was not stateless, effectively unless and until the contrary was established by events. He accepted that the removal directions could only be enforceable if appropriate travel documents from the UK to Bhutan could be obtained, and it was impossible on the evidence before him to prejudge whether they could at this stage. We accept the sustainability of the Adjudicator's conclusion that it is premature at this stage to conclude that the Appellant will not be accepted as a national by the Bhutanese government. This conclusion was properly open to him on the evidence.

13.	The final ground of appeal in part reflects the previous ground and is that the Adjudicator failed to take into account the objective evidence on the subject of citizenship. In this regard we reach the same conclusions as described in relation to the previous ground.  The Adjudicator did take the objective evidence into account and his conclusion properly reflects it. However a separate point is raised, challenging the Adjudicator's finding that on return the Appellant might experience discrimination as an ethnic Nepalese but that it would not amount of persecution. It is suggested by Mr Davison that the Adjudicator did not have reference to the current CIPU report, which suggested that there were human rights abuses including detention, false imprisonment, confiscation of property, beating and torture. It is correct that the CIPU report does identify general human rights abuses by the authorities in Bhutan. It also discloses that the land of the Nepalese who fled in the early 1990s, is being taken over by Bhotes, and that there are pressures on the Nepalese to assimilate into the national culture. There is also a report from a refugee in October 2002, reported in a Nepali newspaper, that ethnic Nepalis in the north of Bhutan being targeted for false imprisonment and confiscation of property including their identity cards.  However the Nepal Foreign Minister stated that 90% of Bhutanese refugees had valid identity documents. Also Amnesty International in a 2000 report indicated that after 1992, when there was a substantial exodus of Nepalis, the nature of the action taken by the authorities changed with significantly fewer reports of gross human rights abuses. 

14.	The Adjudicator plainly did have regard to all the objective evidence. He said so in paragraphs 6.2 and 6.6, and he referred to various relevant points from it at various stages. He did not specifically mention the points described above in his determination but he did reach a clear overall conclusion that the Appellant's treatment would not be different from that of the Nepali population in Bhutan in general, which comprised some 35% of the population. Although this treatment was discriminatory, it would not amount to a real risk of persecution. Having assessed the evidence to which we have been referred, we conclude that the Adjudicator was entitled to reach this finding on the evidence before him.

15.	For the reasons stated above we find that the grounds of appeal fail to establish that the determination is either plainly wrong or unsustainable. This appeal is accordingly dismissed.

Spencer Batiste
Vice-President